An Ontario review of legal cases which have considered patients' ability to consent to substance use treatments.
Keywords: Ontario; addictions; adult psychiatry; medicolegal issues.
In general, prescribers must consider whether informed consent was provided prior to starting a treatment. A patient is presumed to be capable to consent to a proposed treatment but could be incapable with respect to any medical treatment. While incapacity is often considered for psychiatric treatments, it could be relevant to substance use treatment like methadone or suboxone, which are also called “Opioid Agonist Therapies” or OAT. OAT is lifesaving and prevents relapse and overdose when a person has an opioid use disorder. If a patient is found incapable of consenting to a treatment, a Substitute Decisions Maker would become the decision maker. In such cases, the patient has the ability to contest or disagree with the finding, and this results in a tribunal hearing at the Consent and Capacity Board in Ontario (CCB). In certain circumstances, the CCB publishes what are known as its Reasons for Decision (RDs), which explain the tribunal's reasoning in coming to a decision in favour of the physician or the person found incapable. This information is publicly searchable. Our methods involved a search of all available CCB RDs in Ontario for search terms related to substance use treatment, such as "methadone”. We found that between June 1, 2003 (the date on reporting of RDs began) and June 27, 2023, only 71 RDs involved substance use search terms, out of a total of 10,463 reported RDs. Only one case involved the CCB upholding a finding of incapacity with respect to methadone treatment. These results imply that there are few cases in which the CCB has considered incapacity with respect to substance use treatment, although it is possible that these cases are reported at a lower frequency than other cases.